Australian Capital Territory Numbered Acts

RESIDENTIAL TENANCIES AMENDMENT ACT 2017 (NO. 32 OF 2017) - SCHEDULE 2

Schedule 2     Commercial guarantees—stage 2 amendments

(see s 3)

[2.1]     Section 15 (4) (b)

substitute

        (b)     if the guarantee or indemnity is a commercial guarantee—only includes a commercial guarantee that is consistent with a registered standard guarantee contract.

[2.2]     Section 15 (7)

substitute

    (7)     In this section:

"registered standard guarantee contract" means a standard guarantee contract registered under section 104.

[2.3]     Section 16 (2) and (3)

substitute

    (2)     A guarantee or an indemnity under subsection (1) is only enforceable against the guarantor or indemnifier—

        (a)     if it is in addition to a bond—to the extent of the difference between the maximum amount that would have been payable by the tenant as a bond and the amount that is payable by the tenant as a bond; or

        (b)     if it is in place of a bond—to the extent of the maximum amount that would have been payable by the tenant as a bond.

    (3)     A term of a commercial guarantee, in relation to a residential tenancy agreement, that is inconsistent with, or is in addition to, a registered standard guarantee contract is void.

    (4)     If a regulation requires a commercial guarantee to include a term in the contract, the guarantee is taken to include the term.

    (5)     If a regulation requires a matter to be excluded from a commercial guarantee, the guarantee is void to the extent that it includes the matter.

    (6)     In this section:

"registered standard guarantee contract" means a standard guarantee contract registered under section 104.

[2.4]     New part 8

insert

Part 8     Registration of standard guarantee contract for commercial guarantee

102     Meaning of commercial guarantee and standard guarantee contract

In this Act:

"commercial guarantee", in relation to a residential tenancy agreement, means a contract or arrangement between the lessor, the tenant and a third party—

        (a)     that is in addition to or in place of a bond; and

        (b)     under which the third party, for a fee, benefit or reward, gives a guarantee or indemnity to the lessor for the performance of the tenant's obligations under the residential tenancy agreement.

"standard guarantee" contract means a form of contract for a commercial guarantee.

103     Application for registration of standard guarantee contract

    (1)     A person may apply to the commissioner for fair trading to register a standard guarantee contract for a commercial guarantee.

    (2)     The application must—

        (a)     be in writing; and

        (b)     include the applicant's name, address, email address and phone number; and

        (c)     include any information prescribed by regulation.

Note 1     It is an offence to make a false or misleading statement, give false or misleading information or produce a false or misleading document (see Criminal Code

, pt 3.4).

Note 2     A fee may be determined under s 134 for this provision.

104     Commissioner must decide application

    (1)     Within 30 days after the day the application is received, the commissioner for fair trading must—

        (a)     register the standard guarantee contract; or

        (b)     register the standard guarantee contract subject to conditions; or

        (c)     refuse to register the standard guarantee contract.

Note     Failure to decide the application within the required time is taken to be a decision not to register the applicant (see ACT Civil and Administrative Tribunal Act 2008

, s 12).

    (2)     Before making a decision under subsection (1), the commissioner may ask an applicant to give the commissioner, within a stated time, information about the applicant or about the standard guarantee contract, that the commissioner reasonably needs to decide the application.

    (3)     If the applicant does not give the commissioner the information requested under subsection (2), the commissioner may refuse to register the standard guarantee contract.

    (4)     If the commissioner refuses to register the standard guarantee contract, or registers the standard guarantee contract subject to conditions, the applicant may apply to the ACAT for a review of the decision.

Note 1     The commissioner for fair trading must take reasonable steps to give a reviewable decision notice to any person whose interests are affected by the decision (see ACT Civil and Administrative Tribunal Act 2008

, s 67A).

Note 2     The requirements for reviewable decision notices are prescribed under the ACT Civil and Administrative Tribunal Act 2008

.

105     Register of standard guarantee contracts

    (1)     The commissioner for fair trading must keep a register of standard guarantee contracts.

    (2)     The register must include—

        (a)     the business name and the trading name of the person who has registered a standard guarantee contract; and

        (b)     any information prescribed by regulation.

    (3)     The register may include any other information the commissioner for fair trading believes will improve consumer protection.

    (4)     The register may be kept in any form, including electronically, that the commissioner decides.

    (5)     The commissioner must make the register available to the public.

Note     The Territory privacy principles (the TPPs ) apply to the commissioner for fair trading (see Information Privacy Act 2014

, sch 1). The TPPs deal with the collection, storage and exchange of personal information.

106     Relationship to Australian Consumer Law (ACT)

This part and section 16 (3) do not affect the operation of the Australian Consumer Law (ACT).

[2.5]     New section 134

insert

134     Determination of fees

    (1)     The Minister may determine fees for this Act.

Note     The Legislation Act

contains provisions about the making of determinations and regulations relating to fees (see pt 6.3).

    (2)     A determination is a disallowable instrument.

Note     A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

.

[2.6]     New section 136 (2) (c)

insert

        (c)     commercial guarantees, including the following:

              (i)     grounds for registering, applying a condition to, or refusing to register a standard guarantee contract;

              (ii)     a matter that must be included in, or excluded from, a commercial guarantee;

              (iii)     requirements in relation to reporting on, record keeping for and the administration of commercial guarantees;

              (iv)     if a person has registered a standard guarantee contract—information that the person must give to another person before entering into a commercial guarantee with the other person;

              (v)     amending, renewing, ending or suspending the registration of a standard guarantee contract.

[2.7]     Schedule 1, clause 13 (1)

omit

commissioner of fair trading

substitute

commissioner for fair trading

[2.8]     Dictionary, note 2

insert

              •     Australian Consumer Law (ACT)

[2.9]     Dictionary, new definition of commercial guarantee

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"commercial guarantee"—see section 102.

[2.10]     Dictionary, definition of commissioner

omit

[2.11]     Dictionary, new definition of standard guarantee contract

insert

"standard guarantee" contract —see section 102.